Citation Nr: 1303178
Decision Date: 01/30/13 Archive Date: 02/05/13
DOCKET NO. 04-22 360 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for diabetes mellitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Whitehead, Counsel
INTRODUCTION
The Veteran had a period of Active Duty for Training from June to August 1982. He also served on active duty from May 1983 to October 1986.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
The issue was previously before the Board on multiple occasions and was most recently remanded in November 2011 to the RO via the Appeals Management Center (AMC) for additional development. The RO/AMC continued the denial of the claim in a November 2012 Supplemental Statement of the Case (SSOC). The case has now been returned to the Board for further appellate review.
FINDING OF FACT
Diabetes mellitus was not incurred in service and is not caused or aggravated by a service-connected disability.
CONCLUSION OF LAW
The criteria for service connection for diabetes mellitus have not been met. §§ 1112, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duty to Notify and Assist
With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
The RO's notice letters dated in June 2003 and March 2006 and a May 2005 Statement of the Case (SOC) advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The March 2006 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with these letters and the May 2005 SOC, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Although the March 2006 notice letter and May 2005 SOC were provided to the Veteran following the initial adjudication of his claim in August 2004, the claim was later readjudicated, with the most recent occurring in the December 2012 SSOC.
With respect to the duty to assist, the RO obtained the Veteran's service treatment records, VA medical records, and identified private records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has submitted written statements as to his contentions. Neither the Veteran nor his representative has identified any outstanding evidence and none is found by the Board.
Additionally, VA provided the Veteran with VA examinations in October 2003, August 2008, and January 2012 with respect to the claimed diabetes mellitus disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Collectively, the medical examinations and opinions are adequate, as they are based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examinations of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
The Veteran's claim was remanded in March 2008 and November 2011 so that the RO could obtain his outstanding VA medical records and the Veteran could be afforded VA examinations. His outstanding VA medical records have been associated with the claims file and he was provided VA examinations in August 208 and January 2012. The Board finds that there has been substantial compliance with its remands as the RO has obtained the Veteran's outstanding VA medical records and obtained medical opinions with respect to his claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.
Legal Criteria for Service Connection
Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131.
Generally for service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).
Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
The Veteran does not contend, and the evidence does not show, that his diabetes mellitus first manifested during service or during his period of active duty for training from June to August 1982. Thus, the provisions regarding service connection for injuries and/or diseases incurred during active duty for training service will not be discussed. See generally, 38 U.S.C.A. § 101; 38 C.F.R. § 3.6.
Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. Ap. 49 (1990).
Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).
Factual Background and Analysis
The Veteran seeks secondary service connection for his currently diagnosed diabetes mellitus disorder. He claims that his diabetes mellitus is due to his obesity and that his obesity is due to inactivity resulting from his service-connected disorders of the low back and lower extremities. The Veteran essentially maintains that his obesity (caused by inactivity) has caused or aggravated his diabetes mellitus.
The service treatment records have been reviewed and are negative for a diabetes mellitus diagnosis. These records do show that the Veteran was evaluated and monitored for obesity during his military service. The Board notes that the Veteran is not service-connected for obesity.
Post-military medical records reveal a diagnosis of diabetes mellitus in May 2002 during the Veteran's hospitalization for a pulmonary embolism. At the time of this diagnosis, service connection had been granted for the following disabilities: residuals of a left knee sprain; arthralgia of the right knee; arthralgia of the lumbosacral spine; degenerative arthritis of the left knee; degenerative arthritis of the right knee; and thrombophlebitis of the right leg.
The Veteran underwent a VA examination in October 2003 to assess the etiology of his diabetes mellitus. He relayed his medical history of an initial diagnosis of diabetes mellitus in 2002 during his hospitalization, at which time he was told that his diabetes mellitus was due to stress. The Veteran also reported having back pain and leg pain due to his service connected disabilities, and he described a decreased ability to walk more than short distances. The examiner noted that the Veteran was overweight. The Veteran stated that he started to gain weight after sustaining his knee disabilities two years prior. On the physical examination, the Veteran's weight was reported as 463 pounds, which the examiner characterized as grossly overweight. The clinical examination confirmed the diagnosis of diabetes mellitus. The examiner opined that it was at least as likely as not that the Veteran's diabetes mellitus was precipitated by obesity which might have been aggravated by limited ambulation. According to the examiner, the Veteran's arthritic condition could also be considered as partly responsible for deep venous thrombosis and obesity as well.
In support of his claim, the Veteran submitted a letter in June 2008 from his private physician, L.K.S., M.D. This physician relayed that the Veteran had blood clots in his right leg in 2002 that resulted in a pulmonary embolism. He stated that the Veteran's pulmonary embolism resulted in his hospitalization, decreased activity, and weight gain. He further stated that the Veteran's decreased activity and weight gain exacerbated his blood sugar control problem and that his sugar had been higher and harder to control since that time. Dr. L.K.S. opined that the Veteran's clots led to a worsening of his sugar control.
The Veteran underwent a second VA examination in August 2008 to determine the nature and etiology of his diabetes mellitus. The examiner noted that the disorder was asymptomatic at onset and also noted a history of morbid obesity and failure to lose weight. Following the clinical examination, the examiner opined that the Veteran's diabetes mellitus was not caused by or a result of his right leg thrombophlebitis. The examiner explained that diabetes mellitus was caused by a metabolic failure to produce or efficiently use insulin. According to the examiner, thrombophlebitis and the medications used to treat an embolus would not affect insulin metabolism. The examiner noted that the Veteran had been morbidly obese for years and lived a sedentary lifestyle, which she essentially noted were both risk factors for developing diabetes mellitus, type II.
During the pendency of the appeal, service connection has also been granted for the following disabilities: sleep apnea with pulmonary embolism associated with thrombophlebitis of the right leg due to decreased mobility caused by arthritis of the leg and back; and an anxiety disorder associated with arthritis and instability of the right knee.
As directed by the November 2011 Remand, the Veteran underwent an additional VA examination in January 2012 to determine the relationship, if any, between his diabetes mellitus and his service-connected disabilities of the lower extremities, sedentary lifestyle, and morbid obesity. The clinical examination revealed a continued diagnosis of diabetes mellitus. Based on a review of the claims file and the results of the examination, the examiner opined that the Veteran's diabetes mellitus was less likely than not proximately due to or the result of his service-connected disabilities. The examiner explained that the Veteran had type II diabetes (adult onset) due to an insulin resistance. According to the examiner, genetic and dietary factors are the main factors for this condition. The examiner then noted that the Veteran had a very strong history of diabetes, as both of his parents had a history of diabetes mellitus. He also stated that there was no evidence of substantial efforts for caloric/dietary limitations by the Veteran, which the examiner opined was the main reason for his obesity, not his service-connected disabilities. The examiner determined that the Veteran was clinically obese upon entry into service based on the service treatment records, as his body mass index was 30 or greater. He concluded that the Veteran's obesity preceded any of his in-service injuries. He further explained that studies from gastric bypass patients also confirmed that the key determinant in obesity is caloric intake.
Regarding possible aggravation of the claimed disorder, the examiner highlighted that the Veteran was diagnosed with diabetes mellitus in 2002, several years after the onset of his service-connected disabilities. He noted that objective evidence following the Veteran's diagnosis showed that his weight decreased from the 460 to 480 range to the 430 range, which was the opposite of what the Veteran claimed. The examiner stated that the Veteran's weight would have increased if there was an aggravation of his diabetes mellitus. Ultimately, the examiner concluded that the Veteran's diabetes mellitus was aggravated by dietary and prescription nonadherence rather than his service-connected disabilities.
Based on the foregoing, the preponderance of the evidence is against the claim for service for diabetes mellitus. Again, the Board reiterates that the available evidence of record does not indicate, nor does the Veteran claim, that his diabetes mellitus began during his military service or is related to his military service. Additionally, the medical evidence of record and the Veteran's competent lay statements do not indicate that this disorder was diagnosed until many years after his discharge from the military. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, service connection on a direct or presumptive basis is denied and need not be discussed further.
The Veteran's primary theory in support of this claim is that his diabetes mellitus is caused and/or aggravated by his obesity and sedentary lifestyle, which are due to his service-connected disabilities affecting the low back and lower extremities. Thus, he claims that secondary service connection is warranted. Unfortunately, the Veteran's claim also fails under a secondary theory of entitlement. In reaching this conclusion the Board notes that the January 2012 VA examiner's opinions provide the most probative evidence against this theory of entitlement. The January 2012 VA examiner thoroughly reviewed the claims file, after which he essentially opined that the Veteran's diabetes mellitus was not caused or aggravated by his service-connected disabilities. Indeed, the January 2012 VA examiner identified the main factor for the Veteran's diabetes mellitus as his lack of caloric restriction and obesity; he also noted the Veteran's family history of diabetes, which are both risk factors for this disorder. The Board notes that the August 2008 VA examiner similarly attributed the Veteran's diabetes mellitus to his obesity and sedentary life style, and not to a service-connected disability. Additionally, the January 2012 examiner explained that the Veteran's service-connected disabilities did not aggravate his diabetes mellitus, and instead the condition was aggravated by the Veteran's dietary and prescription nonadherence. Since these medical opinions were based on a review of the pertinent medical history and are supported by sound medical rationale, they provide compelling evidence against the Veteran's claim that his diabetes mellitus is secondary to any of his service-connected disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position). See also Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (VA examiners are presumed competent).
In reaching the above determination, the Board recognizes the October 2003 VA medical opinion and Dr. L.K.S.'s June 2008 opinion which seem to suggest a link between the Veteran's diabetes mellitus and his obesity due weight gain and decreased activity caused/aggravated by his service-connected disabilities. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the Board finds the January 2012 VA opinions to be more probative than the other opinions of record.
As detailed above, the October 2003 VA examiner suggested that the Veteran's diabetes mellitus had been precipitated by obesity which might have been aggravated by the Veteran's limited ambulation. The examiner also stated that the Veteran's service-connected arthritic conditions could be possibly responsible for his obesity. However, the October 2003 VA examiner's use of the words "might have been" and "could" in this case makes the examiner's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (193) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). Thus, the Board finds the October 2003 VA examiner's opinion lacks probative value due to its speculative nature.
Moreover, the Board also finds both the October 2003 VA examiner's opinion and Dr. L.K.S.'s June 2008 opinion to be flawed as neither clinician provided a detailed rationale to support their seemingly favorable opinions. Essentially, there is no indication as to whether the physicians reviewed any medical records or medical literature in formulating their opinions. The United States Court of Appeals for Veterans Claims (Court) has emphasized that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 120, 124 (2007) ( "[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Given that the October 2003 and June 2008 private opinions are not supported by medical rationale, they lack probative value and do not provide a basis with which to grant the Veteran's claim.
The United States Court of Appeals for the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). "[I]t is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reason or bases. It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Owens v. Brown, 7 Vet. App. 429, 433 (1995). As the January 2012 VA examiner's opinions are supported by a detailed rationale, review of the claims file, and clinical examination of the Veteran, the Board gives these opinions greater weight, as compared to the October 2003 VA opinion and Dr. L.K.S.'s June 2008 opinion.
In addition to the medical evidence, the Board has also considered the Veteran's statements that his diabetes mellitus is related to the service-connected disabilities, which he claims to have caused or aggravated his obesity and limited activity level. A veteran's lay statements may be competent to support a claim for service connection where the events or the presence of disability or symptoms of a disability are subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). However, the Veteran's diabetes mellitus claim is for a disability that is not subject to lay opinions concerning etiology. While some symptoms of the disorder, such as unusual thirst, may be reported by a layperson, the diagnosis and etiology of the claimed disorder requires medical training. The Veteran simply does not have the medical expertise to provide an opinion regarding the etiology of this disorder. Thus, the Veteran's lay assertions as to the etiology of the claimed disorder are not competent, credible, or sufficient in this instance. Jandreau, 492 F.3d 1372.
In summary, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus on a direct, presumptive, or secondary basis. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims. See Gilbert, 1 Vet. App. at 53.
ORDER
Entitlement to service connection for diabetes mellitus is denied.
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L.M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs